Posted by New NeoMonday, August 21, 2017 at 8:16pm | 8/21/2017 - 8:16pm

The US has a different tradition than Europe

Antifa justifies its violent actions against neo-Nazis protesting peacefully by saying that the speech of Nazis constitutes violence:

Antifa leaders admit they’re willing to physically attack anyone who employs violence against them or who condones racism — as long as force is used in the name of eradicating hatred…

Antifa members also sometimes launch attacks against people who aren’t physically attacking them. The movement, Crow said, sees alt-right hate speech as violent, and for that, its activists have opted to meet violence with violence.

One hears this sort of self-serving sophistic equation between speech and action a great deal these days from the left, and I suppose some people must find it convincing. But freedom of speech is a right that is legally protected in this country to a greater degree than is usual in other countries because of the overwhelming need to protect liberty.

That does not mean that there aren’t exceptions to free speech in this country. One prominent and obvious one is defamation, and even in that regard we in the US tend to make it more difficult to prove defamation than is generally the case in Europe, and the reason behind that is the importance we give to the protection of liberty in this country. Another exception to freedom of speech in the US is what is referred to as incitement:

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”. In Brandenburg v. Ohio (1969), the Supreme Court unanimously reversed the conviction of a Ku Klux Klan group for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.

Unless the neo-Nazis are expressing such an immediate and/or imminent intent, they do not fall under this exception. It is certainly not up to Antifa to decide to stop their speech in an extra-legal fashion through violence. But such distinctions are lost on Antifa and their sympathizers.

Anti-free-speech arguments of a different sort are offered by leftist academics such as law professor K-Sue Park, whose recent op-ed in the NY Times (discussed by Professor Jacobson in this post) took the ACLU to task for defending the free speech of neo-Nazis:

The question the organization [ACLU] should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?…

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

In other words, the ACLU should loosen its traditional even-handed defense of freedom of speech as a principle of liberty, and adopt a leftist power/class/racial/hierarchical approach and defend only those groups the left thinks are entitled to free speech.

This not only violates our American tradition of defense of free speech even when offensive (which neo-Nazis most certainly are), but it also tends to be more in line with the European point of view regarding free speech. For example, not all countries in Europe ban Nazi symbols such as flags, but many either ban or restrict them in various ways, although they are allowed as free speech here. The restrictions on such symbols are particularly strict in Germany and Austria, for reasons that are obvious.

However, even Germany allows neo-Nazi parties to exist, despite many attempts to get them banned. A recent court ruling (January of 2017) went this way:

Yes, Germany’s National Democratic Party (NPD) is “related to National Socialism”, the country’s supreme court in Karlsruhe said on January 17th. And yes, its aims are to undermine Germany’s constitution and ultimately to establish an ethnically pure German Volk. And yet, the red-robed judges opined, there is no sign that the NPD could come close to fulfilling its goals. The party, it ruled, will therefore not be banned.

This landmark verdict ends a decades-long saga of failed efforts to declare Germany’s neo-Nazi party illegal…

… the standard of proof for banning political parties, mandated by the European Court of Human Rights in Strasbourg, is high. In societies that value free speech and association, it is not enough to prove even the worst motivation; a party must also have a “real potential” to make good on evil designs.

Germany has long enforced a strict ban on Nazi symbols or anything to do with glorification of the Third Reich.

For the neo-Nazi march, one flag per 50 people was allowed, images of Rudolf Hess [the man whose death was being commemorated] were forbidden, as were drums and military music. Police individually searched each marcher in a specially set-up tent before allowing them into the penned-off march area. The neo-Nazis had to cover up tattoos and they weren’t even allowed to chant slogans. In a country where guns are banned, nothing more dangerous than a mobile phone was allowed on them.

The German authorities are trying to walk a fine line here; they probably don’t want to make free-speech martyrs out of the relatively powerless neo-Nazis. The Germans may even be aware of the history of what happened in Germany during the 1920s and 1930s regarding the restriction of Nazi speech:

…[In the 1920s and 30s, Nazis did go to jail for anti-Semitic expression, and when they were released, they were celebrated as martyrs. When Bavarian authorities banned speeches by Hitler in 1925, for example, the Nazis exploited it. As former ACLU Executive Director Aryeh Neier explains in his book Defending My Enemy, the Nazi party protested the ban by distributing a picture of Hitler gagged with the caption, “One alone of 2,000 million people of the world is forbidden to speak in Germany.” The ban backfired and became a publicity coup. It was soon lifted.

There is nothing easy or pleasant about deciding how to deal with groups such as neo-Nazis. But free speech in this country demands that they be allowed their say and even their marches and their symbols, or we compromise the liberty we hold so dear.

Or do we hold it so dear? According to this poll (taken in 2015), Millenials are considerably more likely than previous generations to advocate bans “to prevent people publicly making statements that are offensive to minority groups.” The figure for Millenials supporting such a ban is 40%, which is not a majority. But it’s a troublingly large minority, particularly compared to the range for other generations: 27% among Gen Xers, 24% for Boomers, and 12% among Silents.

The trend is clear.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

Comments

As Mark Steyn points out… suppressing speech leads to violence. Letting the Far Left speak (that includes the National Socialist Workers Party) allows them to vent but also keeps the public mindful of their beliefs. Right now it is Tiki Nazis … when they find themselves bottled up but the other Fascists get a free ride look out… the Tiki’s give way the Molotov cocktails just like the Anitfa use. That Rep. Ryan just came out solely against the Neos in Charlottesville and no mention of the others is expected but ominous.

Of course, it has nothing to do with “deserve”. Neo-Nazis, TV Nazis, fake Nazis, Nazi wannabees, genuine card-carrying Nationalsozialistische Deutsche Arbeiterpartei members, all have the right to unmolested free speech, just like everyone else; they don’t have to “earn” it in any way.

I fully support the rights of the Neo-Nazis and other extremists to free speech. I supported the ACLU’s defense of the First Amendment in 1977, at the same time that I traveled to Skokie IL to protest against the Nazis. Not against their First Amendment rights, but against the ideas they were propounding.

The Antifa need to be stopped — not for their ideas, but for their violence. Let there be a free exchange of ideas, but in a peaceful manner. If I am threatened — not with ideas but with physical violence — I will respond with violence in self-defense.

Thanks to the teachings of Meir Kahane of Blessed Memory, we will no longer walk peacefully into the gas chambers!

Indeed, every few years you seem to become upset by us. Today, it is the “brutal repression of the Palestinians”; yesterday it was Lebanon; before that it was the bombing of the nuclear reactor in Baghdad and the Yom Kippur War and the Sinai campaign. It appears that Jews who triumph and who, therefore, live, upset you most extraordinarily.

Of course, dear world, long before there was an Israel, we – the Jewish people – upset you.

We upset a German people who elected Hitler and upset an Austrian people who cheered his entry into Vienna and we upset a whole slew of Slavic nations – Poles, Slovaks, Lithuanians, Ukrainians, Russians, Hungarians and Romanians. And we go back a long, long way in the history of world upset.

We upset the Cossacks of Chmielnicki who massacred tens of thousands of us in 1648-49; we upset the Crusaders who, on their way to liberate the Holy Land, were so upset at Jews that they slaughtered untold numbers of us.

For centuries, we upset a Roman Catholic Church that did its best to define our relationship through inquisitions, and we upset the arch-enemy of the church, Martin Luther, who, in his call to burn the synagogues and the Jews within them, showed an admirable Christian ecumenical spirit.

And it is because we became so upset over upsetting you, dear world, that we decided to leave you – in a manner of speaking – and establish a Jewish state. The reasoning was that living in close contact with you, as resident-strangers in the various countries that comprise you, we upset you, irritate you and disturb you. What better notion, then, than to leave you (and thus love you)- and have you love us and so, we decided to come home – home to the same land we were driven out 1,900 years earlier by a Roman world that, apparently, we also upset.

Alas, dear world, it appears that you are hard to please.

Having left you and your pogroms and inquisitions and crusades and holocausts, having taken our leave of the general world to live alone in our own little state, we continue to upset you. You are upset that we repress the poor Palestinians. You are deeply angered over the fact that we do not give up the lands of 1967, which are clearly the obstacle to peace in the Middle East.

Moscow is upset and Washington is upset. The “radical” Arabs are upset and the gentle Egyptian moderates are upset.

Well, dear world, consider the reaction of a normal Jew from Israel.

In 1920 and 1921 and 1929, there were no territories of 1967 to impede peace between Jews and Arabs. Indeed, there was no Jewish State to upset anybody. Nevertheless, the same oppressed and repressed Palestinians slaughtered tens of Jews in Jerusalem, Jaffa, Safed and Hebron. Indeed, 67 Jews were slaughtered one day in Hebron in 1929.

Dear world, why did the Arabs – the Palestinians – massacre 67 Jews in one day in 1929? Could it have been their anger over Israeli aggression in 1967? And why were 510 Jewish men, women and children slaughtered in Arab riots between 1936-39? Was it because Arabs were upset over 1967?

And when you, dear world, proposed a UN Partition Plan in 1947 that would have created a “Palestinian State” alongside a tiny Israel and the Arabs cried “no” and went to war and killed 6,000 Jews – was that “upset” caused by the aggression of 1967? And, by the way, dear world, why did we not hear your cry of “upset” then?

The poor Palestinians who today kill Jews with explosives and firebombs and stones are part of the same people who when they had all the territories they now demand be given to them for their state -attempted to drive the Jewish state into the sea. The same twisted faces, the same hate, the same cry of “itbach-al-yahud” (Massacre the Jew!) that we hear and see today, were seen and heard then. The same people, the same dream – destroy Israel. What they failed to do yesterday, they dream of today, but we should not “repress” them.

Dear world, you stood by during the holocaust and you stood by in 1948 as seven states launched a war that the Arab League proudly compared to the Mongol massacres.

You stood by in 1967 as Nasser, wildly cheered by wild mobs in every Arab capital in the world, vowed to drive the Jews into the sea. And you would stand by tomorrow if Israel were facing extinction. And since we know that the Arabs-Palestinians dream daily of that extinction, we will do everything possible to remain alive in our own land. If that bothers you, dear world, well think of how many times in the past you bothered us.

In any event, dear world, if you are bothered by us, here is one Jew in Israel who could not care less.

Ya know, I’ve been wondering (ok, fantasizing about it) what would happen if an islamist had the thought “Hey, look at all those antifa infidels with their faces covered! They must be mocking my religion! I’m gonna run’em down with a BIG TRUCK!!”

“According to this poll (taken in 2015), Millenials are considerably more likely than previous generations to advocate bans “to prevent people publicly making statements that are offensive to minority groups.” The figure for Millenials supporting such a ban is 40%, which is not a majority. But it’s a troublingly large minority, particularly compared to the range for other generations: 27% among Gen Xers, 24% for Boomers, and 12% among Silents.

The trend is clear.”

So, no. The ideal is not open to discussion in neo’s piece. The TREND is.

I made my own position quite clear with sentences such as “freedom of speech is a right that is legally protected in this country to a greater degree than is usual in other countries because of the overwhelming need to protect liberty” and “free speech in this country demands that [neo-Nazis] be allowed their say and even their marches and their symbols, or we compromise the liberty we hold so dear.”

I hold very strictly to that ideal.

My point about the polls was that, unfortunately, each younger generation has been moving further and further from defense of free speech, and adopting a more postwar European point of view that believes it’s okay to ban “hate speech.” Our tradition in the US is quite different, and my own position is quite different, but the trend I was referring to at the end of the post is the worrisome trend for successive younger generations to be less and less inclined to support free speech even for speech that is offensive.

your statement bothers me, makes me think you are against free speech, we should pass laws banning this type of speech.
still feel the same way?
ugly speech (as atrocious as it may be) is the thing we need to protect the most.
its not pretty, its not supposed to make you feel warm and fuzzy, its up to all of us to protect it.

in retrospect I ASSUMED you may have been referring to the fact the post dealt with protecting free speech of all types while on second look you MAY have been referring to fact that even needing a post like this is (as you put it) spooky,
if the second scenario applies I apologize, if the first applies I stand by it.

So how does it help any understanding to simply call Antifa neoNazi? A change of words doesn’t change anything. Call them what you like or whatever you don’t like. Their ideas don’t change. Their actions don’t change.

The defining feature of neo-nazism is the adoption of the outer appearance of the historical nazi party, so no. They are not copying the nazis, they are copying the original antifa. The fact that their essence is indistinguishable from their opponents is itself historically accurate — there was no real difference between the original nazis and the original antifa either. Charlottesville brought to mind the Battle of Cable Street, but without the one-sided result.

Everyone “deserves” free speech. What neo-nazis–or any other group) doesn’t deserve is a guaranteed soapbox (Private places have every right to deny a stage & microphone to those they oppose. Public spaces need to remain content/ideology neutral.) or attention/an audience. (And that’s on us to decide whether to protest against/ignore/attend the speech of individuals or groups. My instinct is to protest Nazis, but there is something to be said for giving some of these speakers one opposes no attention at all, taking away their ability to provoke.)

I applaud the ACLU for defending any/all speech, including speech I vehemently oppose. (Popular speech is easy to defend, because it seldom needs any.)

I support violence in defense of self and others from violence… Violence in response to words or ideas are pretty much always indefensible… (…which is not a guarantee that I will never punch someone who insults my bride…and maybe even feel justified for awhile after doing so.)

“The internet” is a public “space”, but each server on the internet is someone’s private property. By what right should any individual owner be forced to provide these scum with service? How would that not violate that person’s first amendment rights?

The great promise the internet was to more fully realize the opportunity for free speech and a free press for the people, all people, and any person to espouse any idea, popular or contrarian, and to free it from the control of the MSM. Certainly it would violate our free press rights to force a private news outlet to publish, broadcast, or otherwise disseminate anything against the will of its owners or management, but now that the net is proving not to be the wide-open marketplace of ideas many imagined, but a the private domain of Zuckerberg, Musk, and a few other gatekeepers who could probably crush Legal Insurrection and other small players, free speech in America may start to seem like Chinese freedom, worse than what we had under the domination of the legacy media.

It’s illegal for businesses to discriminate on specific listed grounds. Race is on the list everywhere. In most places sexual orientation is on it too; in places where it isn’t, such discrimination is perfectly lawful. Political opinion is on the list almost nowhere.

Antifa members also sometimes launch attacks against people who aren’t physically attacking them. The movement, Crow said, sees alt-right hate speech as violent, and for that, its activists have opted to meet violence with violence.

The (not-so-easy) trick is finding an activity in which a leftist loves to engage and has a free-speech right to do (e.g., burning a USA flag), and about which a reasonable conservative could be justifiably upset (e.g., having hurt feelings and a belief that one is attacked when the USA flag is burned). Then you approach that leftist and explain that you feel both (i) that burning a USA is an act of violence, and (ii) that you absolutely agree with the leftist that an act of “violence” is good cause for violence in return.

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
― George Washington

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

[Special Message to the Congress on the Internal Security of the United States, August 8, 1950]”
― Harry Truman

“I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
― James Madison

“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
― Benjamin Franklin, Silence Dogood, The Busy-Body, and Early Writings

However, something very sobering once happened to me. I teach history to ESOL students in a high school, and one day I was explaining about presidential term limits and the precedent Washington set by refusing a third term.

Student 1: Did the army shoot him?

Me: No. He thought two terms were enough.

Student 2: was there another revolution?

Me: No. John Adams became president, according to constitutional rules in place at the time.

Student 3: What happened to Washington?

Me: He went back to his farm to retire.

Student: How did he die?

Me: Of pneumonia, after riding around his farm in bad weather.

Student: You mean, nobody shot him, or forced him to leave office?

Me: Absolutely. He said two terms were enough for anyone, and left after his second term ended.

Unhappily, I felt the students’ respect for George Washington fly out the door or sink through the floor. Another time, in 2012, another student wondered why the Clintons and McCain hadn’t been jailed after Obama’s electoral victory. Of course, there are students who come to see that our checks and balances are a good thing, and see how they have helped America become a good place to immigrate to. But, even so, as we have immigrant youth who carry the baggage of badly misgoverned and tyrannized states and native-born youth who are farther and farther removed from the memory of active and dangerous totalitarianism, our educational task and transmittal of the values enshrined in our Bill of Rights becomes harder.

“The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.

That’s not right, either. The Nazis and their ilk get the freedom to speak their vile ideals not because they deserve it, but because it is a right that is guaranteed to ALL by the First Amendment to the Constitution. (By the by, an examination of the Framers’ private correspondence reveals that the freedoms enshrined in the amendments known as The Bill of Rights were ordered as they are quite purposefully.)

The utter genius of the legislators of the thirteen colonies never ceases to amaze!

Fascist attempt to deny civil rights. The most significant difference between political parties is whether they are fascists or not. There is no significant difference between Nazis, Muslims, Communists and Progressive Fascists i.e. democrats.

I lived in Germany have seen the Skinheads and visited concentration camps. They both serve to teach Germans the evil that mankind can descend into. I’ve lived in Japan where people know zero about the Rape of Nanking, and think of themselves as wonderfull. What learning experience is there for the Japanese, who still honor Tojo Hedeki at a shrine each year? The Japanese people are good people, but without a clue as to to their history and their place in the world. Sad!

good point. served in in germany (mid to late 80’s) and noticed that the stifling of their speech led to little learning of their horrors. older people would talk to others about how bad it was but they did not have a protected platform to really speak. now that ww2 generation is dead there we have (in germany) lost a resource to teach horrors all due to stifling their speech.
as that generation died off the anti-american forces gained strength too, odd how that worked huh?

Add “the speech of Nazis constitutes violence” to
“Antifa leaders admit they’re willing to physically attack anyone who employs violence against them” plus
“We get to decide who’s a Nazi” and one gets,

“Your speech is violence, My violence is speech”
(and therefore you have no right to speak, and I have every right to smash your face.)

Even if one believed that Antifa was benevolent (which it surely is not), how could anyone seriously advocate giving any organization absolute power over what may or may not be said in public (and who shall be permitted to speak there)?

Can anyone truly believe that if it were possible to establish a benevolent dictatorship that it could or would remain so?

Announcement

Support this Blog

One Time Donation

(Any Amount)

Monthly Donation

LIN_SeventhWindow

Newsletter

Morning Insurrection

Get the latest from Legal Insurrection each morning plus exclusive Cyber Insurrection and Author Quick Hits!